PUNI CHAND Vs. GIAN NATH

JUDGEMENT

(1.) The above revision has been filed against the order of the learned Senior Subordinate Judge, Kangra at Dharamshala, dated 3.12.1996 in execution petition No. 24/92, whereunder the Court below overruled the objection of the judgment debtor to be devoid of force. The Respondent has instituted the execution proceedings for recovery of a sum of Rs. 9,000/- with costs of Rs. 1,601.40 in execution of the decree passed by the learned Subordinate Judge, Dharamshala, in Civil Suit No. 97/83, made on 27.3.1986. The objection taken to the execution proceedings by the Petitioner-judgment debtor was that the entire decree was satisfied by payment made outside the Court to the Respondent-decree holder for which he was said to have passed on a receipt also in the presence of two witnesses and, therefore, nothing survives in the decree for being executed or recovered thereby from the Petitioner-judgment debtor. In addition thereto, support was sought to be mobilised from the fact that the earlier execution petition came to be dismissed on 25.11.1991 on account of the stand taken that the decree holder Gian Nath had himself stated that he does not sign in vernacular but only put his thumb impression. The objection as pointed out, above raised by the Petitioner, did not meet with the acceptance of the Court below. Hence, the above revision petition.

(2.) Mr. D.D. Sood, learned Senior Counsel appearing for the Petitioner reiterated the objections raised before the Court below by contending that the Executing Court failed to see that if such a plea about the decree-holder merely affixing his thumb impression and not signing in vernacular is to be given credence to and accepted the suit filed by the Plaintiff or for that matter the execution purported to have been filed itself with only the signature of the Plaintiff could not be said to be a genuine one filed by the Plaintiff and, therefore, the decree passed itself would be a nullity and could not on that account be countenanced. It was also pointed out by the learned Senior Counsel for the Petitioner that even in the Vakalatnama filed in the execution proceedings, the signature purported to be that of the decree holder, therefore, could not be that of the decree-holder and, therefore, it must be considered that the decree itself has been obtained fraudulently and could not, therefore, be executed. In other respects, the learned Counsel reiterated the stand that the receipt passed on by the decree holder was a genuine one after receiving the value therefor and, therefore, the Executing Court ought to have held that the decree stood fully satisfied and could not once over again be executed through the process of the Court, for satisfaction.

(3.) Per contra, Mr. K.D. Sood, learned Counsel appearing for the Respondent-decree holder while adopting the reasoning of the Court below also contended that having regard to the provisions contained in Order 21/Rule 2 of the Code of Civil Procedure any payment said to have been made out side the Court to the decree holder has to be duly certified by the decree holder to the Court whose duty is to execute the decree, whereupon it becomes necessary to record the same by the Court or if it is to be otherwise the judgment debtor may inform the Court of such payment or adjustment and after notice to the decree holder as to why the payment or adjustment should not be recorded as certified alone the same could be recorded by the Court and unless at any rate the requirements of sub-rule 2-A is satisfied, no payment or adjustment shall be recorded at the instance of the judgment-debtor and inasmuch as there is no such certification in this case the plea of the Petitioner-judgment debtor as to the alleged payment could not be recognised. Reliance has been placed for the Respondent on the decision of the learned Single Judge of the Madras High Court, Nandgopal Gounder v. Kannan and Anr., 1988 AIR(Mad) 224 It is seen from the decision of the learned Single Judge of the Madras High Court that the payment not certified as required under Rule 2 was held to be not recognisable by the Executing Court even though it could be proved on facts. In, Sultana Begum v. Prem Chand Jain, 1997 1 SCC 373 the Apex Court also had an occasion to deal with a similar issue and it was held therein that uncertified payment of money or adjustment, which is not recorded by the Court under Order 21, Rule 2, Code of Civil Procedure cannot be recognised by the Executing Court and even if the Executing Court comes to the conclusion that the decree was adjusted wholly or in part, so long as the same was not recorded and/or certified by the Court the Executing Court would not recognise them and will proceed to execute the decree as it is. In the light of the above categoric declaration of law by the Apex Court on the same lines as the view taken also by the learned Single Judge of the Madras High Court, there is no merit in the challenge to the order overruling the objection of the Petitioner as also in the grievance sought to be made before this Court that the Executing Court committed an error in not recording the satisfaction of the decree on the basis of payment said to have been made outside the Court evidenced by a receipt said to have been issued by the decree-holder inspite of the fact that it was indisputably not certified or recorded by the Court in the manner contemplated under Order 21, Rule 2 of the Code of Civil Procedure. The provisions contained in sub-rule 2-A of Rule 2 of Order 21 also particularly Sub-rule (3), in my view, makes the position beyond any controversy by engrafting a mandate to the Executing Court not to recognise any payment or adjustment at the instance of the judgment debtor, unless the procedure stipulated therein has been followed, and the payment was got certified or recorded.